CAT/C/45/D/373/2009
The facts as presented by the complainant
2.1
In 1991, the first-named complainant, a teacher, became a member of the PKK.
Soon after, he was sent to join the fighting forces of the PKK base in Haftanin in Iraq. In
1995, he was trained for six months on the politics of the PKK at their headquarters in
Damascus.
2.2
At the end of 1996, he was wounded and was treated in the field. He was only sent
to a hospital in Urimia, Iran, three months later. Since then, he continued to work as a PKK
teacher. In 2000, he was sent to teach in Syria and in 2003, he was sent as a PKK teacher to
Iraq, where he met his future wife, who was a PKK soldier. Since having a relationship
with a fellow soldier was prohibited, he was arrested by the PKK for one month. He
“deserted” the PKK on 16 October 2005 and arrived in Sweden four days later. He claims
that in 1991-1992 his photo was published in national newspapers in Turkey.
2.3
He submits that he is wanted by the military and the police, who searched for him at
his parent’s home. On several occasions, his siblings were forced to accompany the
authorities while they searched for him in the mountains. He claims that the family’s phone
had been and remains tapped by the authorities. A letter from his lawyer confirms that he is
wanted and will be prosecuted for crimes under articles 302 and 314 of Turkish criminal
legislation. He claims that under this legislation he will be sentenced to 15 years’
imprisonment and subjected to torture by the security forces. This was confirmed by the
Diyabakir Human Rights Association.
2.4
On 18 January 2008, the Migration Board rejected the complainants’ application. On
2 September 2008, the Migration Court issued a decision, dismissing the appeal and
arguing that the first-named complainant did not hold any prominent position within the
PKK and had not participated in any combat on its behalf. Two judges out of four disagreed
with the decision of the court and considered that the complainant had a well-founded fear
of being exposed to torture if he were to be deported to Turkey.
2.5
On 22 October 2008, the Migration Court of Appeal decided not to grant the
complainants leave to appeal.
The complaint
3.1
The complainants claim that the forcible return of Mr. Aytulun to Turkey would
constitute a breach by Sweden of his rights under article 3 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
3.2
Counsel refers to the British Home Office guidelines, which states that despite the
policy of zero tolerance against torture, which has resulted in the elimination of the most
severe forms of torture and abuse, there remain reports of incidents of torture during police
custody.
State party’s observations on the admissibility and the merits
4.1
On 18 September 2009, the State party reiterated the facts as submitted by the
complainants and added that according to the information given by the first-named
complainant during the course of interviews with the migration authorities he was allegedly
first arrested in 1989 on suspicion of association with a teacher colleague who was a
member of the Turkish Communist Party. He was interrogated over a period of four days.
During the interrogations, he was beaten and subjected to electric shocks. He was also
prosecuted for handing out political leaflets. During the criminal trial, he managed to
demonstrate that the accusations against him were false and he was released.
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